The Supreme Court of Canada has ruled that a law that sparked a near rebellion among judges is a form of cruel and unusual punishment, and therefore unconstitutional.

The former Conservative government made an existing “victim surcharge” mandatory for all convicted offenders. Before the fall of 2013, judges could waive the financial charge for offenders they deemed unable to pay. (A Liberal government bill that would give judges back their discretion over the surcharge is now before the Senate.)

The case before the Supreme Court involved several impoverished offenders from Ontario and Quebec, including a blind, mentally ill woman with a monthly income of $831. She had pleaded guilty to assault and uttering threats, and faced a surcharge of $200. The appeal courts in Ontario and Quebec had ruled the mandatory surcharge constitutional.

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“The impact and effects of the surcharge, taken together, create circumstances that are grossly disproportionate, outrage the standards of decency, and are both abhorrent and intolerable,” Justice Sheila Martin wrote for the majority in the 7-2 ruling, with Justice Malcolm Rowe and Justice Suzanne Côté in the minority.

“Many of the people involved in our criminal justice system are poor, live with addiction or other mental-health issues, and are otherwise disadvantaged or marginalized. When unable to pay the victim surcharge, they face what becomes, realistically, an indeterminate sentence. As long as they cannot pay, they may be taken into police custody, imprisoned for default, prevented from seeking a pardon, and targeted by collection agencies. In effect, not only are impecunious offenders treated far more harshly than those with access to the requisite funds, their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization.”​

The Conservative government’s stated goal with the mandatory charge was to “rebalance” the justice system, giving more aid to victims and fewer rights to offenders. It set the charge at $100 for each minor offence, and $200 for each major one; for multiple offences, the charge could amount to hundreds of dollars. The money was to be set aside for victim services offered by the provinces.

The mandatory nature of the charge prompted bursts of public criticism from judges. Ontario Provincial Court Justice Colin Westman, in an interview with The Globe and Mail, called it a “tax on broken souls.” (He is now retired, but was a sitting judge in Kitchener at the time.)

Like many other judges in several provinces, he found a creative way around the charge. The victim-surcharge law gave judges the option of setting a fine, as an alternative to the $100 or $200 surcharge; whatever the fine was, a surcharge of 30 per cent would be tacked on. Justice Westman set the fine at $1, bringing a surcharge of 30 cents. Justice Patrick Healy, then of the Quebec Court, wrote a 10,000-word ruling explaining why he was setting the fine at $5, with a surcharge of $1.50. (The federal Liberal government has since elevated Justice Healy to the Quebec Court of Appeal, the highest court in the province.)

Other judges gave 25, 50 or even 99 years to pay. And one judge even struck down the mandatory charge as unconstitutional, without giving the Crown a chance to respond. (That ruling was overturned on appeal.)

The mandatory victim surcharge also prompted discord among judges. Justice Kevin Phillips of Brockville, just beginning on the Ontario Court of Justice, criticized judges for thwarting Parliament’s will, calling it a "recipe for arbitrariness.” Within months, the Conservative government elevated him to the Ontario Superior Court in Ottawa.

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